Documents considered by the Committee on 23 October 2013 - European Scrutiny Committee Contents

11 The EU and Georgia




COM(13) 536




COM(13) 537

Draft Council Decision on the signing and provisional application of a Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States and Georgia on a Framework Agreement between the European Union and Georgia, on the general principles for the participation of Georgia in Union programmes

Draft Council Decision on the conclusion of a Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States and Georgia on a Framework Agreement between the European Union and Georgia on the general principles for the participation of Georgia in Union programmes

Legal base(a)  Article 212 in conjunction with Article 218 (5) TFEU; QMV

(b)  Articles 217 in conjunction with 218 (6) (a) TFEU; QMV

DepartmentForeign and Commonwealth Office
Basis of considerationEM of 22 August and EM and Minister's letter of 8 October 2013
Previous Committee ReportNone; but see (35362-5): HC 83-xviii (2013-14), chapter 5 (23 October 2013)
Discussion in CouncilTo be determined
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


11.1 As part of the European Neighbourhood Policy (ENP), the gradual opening-up of certain Union programmes and agencies to the participation of ENP partner countries aims to promote reform, modernisation and transition in the European Union's neighbourhood. The Commission outlined this policy aspect more extensively in its Communication of December 2006 "on the general approach to enable European Neighbourhood Policy partner countries to participate in Community agencies and Community programmes".[54] The Council endorsed this approach in conclusions on 5 March 2007.[55]

11.2 Based upon this Communication and those conclusions, the Council, on 18 June 2007, tasked the Commission with negotiating Framework Agreements with Algeria, Armenia, Azerbaijan, Egypt, Georgia, Israel, Jordan, Lebanon, Moldova, Morocco, the Palestinian Authority, Tunisia and Ukraine, on the general principles for their participation in Community programmes.

11.3 The June 2007 European Council[56] reaffirmed the importance of the ENP and endorsed a Presidency Progress Report[57] that had been submitted to the General Affairs and External Relations Council (GAERC) meeting on 18/19 June 2007, as well as the related Council Conclusions.[58] This report recalled the Council directives to negotiate relevant additional protocols.

11.4 The Joint Communication by the Commission and the High Representative of the European Union for Foreign Affairs and Security Policy, "A new response to a changing Neighbourhood", [59] endorsed by Council Conclusions on 20 June 2011, further stressed the EU's intention to facilitate partner countries' participation in EU programmes.

11.5 In September 2011, the participants of the Eastern Partnership's Warsaw Summit agreed to facilitate participation by partner countries in EU programmes and agencies.

11.6 To date, Protocols have been signed with Armenia, Israel, Jordan, Moldova, Morocco and Ukraine.

11.7 In December 2012, Georgia expressed its interest to participate in the broad range of programmes open to partner countries of the European Neighbourhood Policy.

The draft Council Decisions

11.8 These draft Council Decisions are aimed at enabling Georgia's involvement in European Union programmes and agencies through its participation in the ENP. The EU programmes in question promote co-operation in different, specific fields and were, in principle, originally conceived for Member States. However, the regulations for these programmes allow for the possibility of third country participation, provided that certain terms and conditions are met. Each participant contributes to the specific programmes in which they participate, and takes part, as observers, in the management of such programmes. Those programmes are subject to the same reporting, evaluation, control and audit requirements as all other EU programmes.

The Government's view

11.9 In his Explanatory Memorandum of 22 August 2013, the Minister for Europe (Mr David Lidington) supports and welcomes the proposed Protocol.

11.10 He continues as follows:

"The South Caucasus is of strategic importance to the UK and the EU. Continued stability in this region is also key for the UK's prosperity and energy security goals, and it is therefore strongly in our interests that Georgia continues along its EU path. The EU plays an important role in conflict resolution in Georgia through the EU Special Representative for the South Caucasus and EU Monitoring Mission that provides an effective monitoring presence along the Administrative Boundary Lines between Georgia and its breakaway regions. Closer political association and greater economic integration in to the EU is the most effective way to promote reform and modernisation in Georgia, as well as contributing to conflict resolution.

"More broadly, the UK remains a strong supporter of Georgia's progression towards closer ties with the EU as part of our long-standing support to the enlargement of the EU and strengthened ties in the Eastern Neighbourhood region.

"Georgia has just concluded negotiations on an Association Agreement with Deep and Comprehensive Free Trade Area with the EU, and has strong policy aims to move closer to EU norms and standards. Participation in the policy under question, by allowing Georgia to participate in Union programmes, would help familiarise it with EU policies and working methods, and allow for progressive integration into EU networks. This will, in turn, help to encourage Georgia to drive forward with genuine commitment and energy the reforms necessary for its long term security and prosperity, and consequently the security and prosperity of the EU."

11.11 Looking ahead, the Minister says:

"All of the Union programmes that Georgia is currently eligible to participate in will need to be renewed in the context of the 2014-21 multiannual financial framework. Furthermore there may be other Union programmes that Georgia is not currently eligible to participate in but under the terms of their renewal may permit Georgia's participation. We will keep this under review."

11.12 With regard to the Legal and Procedural Issues, the Minister says:

"The Commission has proposed using Article 212 TFEU as the substantive legal basis for adoption of these draft Council Decisions. This is a departure from recent precedent. For example, in relation to similar decisions relating to the Ukraine and Armenia's participation in EU programmes the legal bases cited covered the underlying legal bases establishing the EU programmes themselves. The Government will therefore seek to have the current legal basis amended by Council, in particular by seeking to add to the draft Council Decision all substantive legal bases for the programmes.

"The Council Decisions are likely to be discussed in working groups in September. The UK intends to table a Minute Statement when the decisions are adopted at Council which makes clear that UK agreement to the future extension to Georgia of any programmes based on Article 352 TFEU will be subject to prior approval by Parliament."

11.13 In his supplementary Explanatory Memorandum of 8 October 2013, the Minister then says:

"Cross-Whitehall discussions concluded that the UK should assert its opt-in in relation to these proposed Decisions. This is because Georgia will be eligible to participate in two Union programmes (Fiscalis 2020 and Customs 2020) in relation to which internal EU instruments establishing these programmes the UK has asserted its opt-in and opted into. As a result of the EU seeking to enter into an international agreement with Georgia which will permit Georgia to access these programmes and which agreement, as a result of Article 216 TFEU, is binding upon both EU institutions and Member States our view is that the UK's opt-in does apply to these proposals. There is continuing uncertainty regarding which Union programmes Georgia will be eligible to participate in as a result of the Framework Agreement."

11.14 Then, in addition to the points in paragraph 11.12 above, the Minister says:

"In particular, in light of Georgia's eligibility to participate in the Fiscalis 2020/Customs 2020 programmes we may seek to add Article 87(1) TFEU, as the rationale for the UK opting into the internal EU instruments establishing these programmes was their containing provisions prioritising the fight against fraud. This will be subject to the UK seeking to obtain the citation of such a legal base in relation to the EU internal instruments seeking to establish these programmes. Such instruments do not currently have a Title V legal base."

11.15 Finally, the Minister confirms that working group level discussions began in late September, but also says that it is not yet confirmed when the draft Council Decisions will be discussed in Council.

The Minister's letter of 8 October 2012

11.16 The Minister says that, in parallel with his supplementary Explanatory Memorandum, his letter:

"is to update you on further analysis, and is to be considered in conjunction with the supplementary and original EMs on this issue. It covers both the draft Council Decision on the signing and provisional application of the Framework Agreement, and the draft Council Decision on its conclusion."

11.17 The Minister then continues as follows:

"My officials have been working hard to ensure that UK interests are protected in this Framework Agreement. At the time of submitting our initial EM of 22 August, the Government had not reached a conclusive position as to whether these measures contained JHA content in relation to which the UK should assert its opt-in. The programmes, to which Georgia may be eligible, under the Framework Agreement, are in the process of being renegotiated as part of the Multi-annual Financial Framework. Once further clarity on the relevant programmes had been obtained this necessitated detailed analysis as to the applicability of the opt-in.

"In particular, in relation to two programmes, currently under renegotiation (Customs 2020/Fiscalis 2020), the UK has opted-into the proposed EU instruments seeking to establish them.

"I can now confirm to your Committee that it is the Government's position that the UK's JHA opt in has been triggered in relation to the proposed Decisions which seek to make Georgia, inter alia, eligible to participate in Union programmes that we assess as having JHA content."

11.18 The Minister then turns to the matter of timing:

"The timings have created a regrettable situation in terms of your Committee's opportunity to examine the issue of the UK opt-in in this case, for which I apologise. All language versions of the draft Council Decision on the signing and provisional application of the Framework Agreement were published on 25 July; this triggered the usual 8-week window for enhanced parliamentary scrutiny of JHA issues to commence under the JHA Code of Practice. Unfortunately, the Government had not reached the conclusion that the JHA opt-in had been triggered at that point owing to the uncertainty regarding precisely which Union Programmes would be eligible to participate in pursuant to the Framework Agreement. Consequently, Parliamentary Scrutiny Committees have not had the proper opportunity to consider and opine on the JHA aspects.

"All language versions of the draft Council Decision on conclusion of the Framework Agreement, the second relevant Council Decision here, were published on 3 September — meaning that the usual 8-week window for enhanced parliamentary scrutiny of JHA issues within that Decision on conclusion runs until 29 October, and is thus still 'open' for your Committee to opine.

I am now resubmitting a supplementary EM to your Committee to allow your Committee to scrutinise the opt-in aspects of this agreement specifically — with regards to the proposed Council Decisions both on (i) signing and provisional application and (ii) conclusion of this Agreement. In all other points of substance this Supplementary EM mirrors our original EM of 22 August. We would welcome a view from your Committee on the JHA aspect specifically of these two Council Decisions.

"The two documents follow in sequence, but to set out their slightly separate timings clearly:

—  "The three-month window for the Government to indicate its final decision on whether to opt-in on the Council Decision on signing and provisional application closes on 25 October. Although the 8-week window for scrutiny has closed, we would welcome a view from your Committee before that date. I appreciate that this is a short timescale, but am keen to offer your Committee some opportunity to give a view on this point.

—  "The three-month window for the Government to indicate its final decision on whether to opt-in on the Council Decision on conclusion closes on 3 December. The usual 8-week window for Parliament to opine on this document started on 3 September with the publication of the last language version (all language versions of this document were published on the same date), and thus ends on 29 October. Again, I regret that Parliament was not notified sooner, but here there is a marginally longer window for your Committee to give Government its view on the opt-in.

"I regret that this notification that the opt-in is engaged comes so late, and would like to assure you that my officials continue to work to ensure that analysis regarding the JHA opt-in is completed and decisions are taken as early as possible. I and my officials stand ready to provide any further information your Committee would find helpful."


11.19 The proposal raises no political questions (unlike the latest proposal on Ukraine, which we discuss elsewhere in this Report).[60] However, this is not so with regard to the legal issues.

11.20 We note the Minister's comments on the applicability of the opt-in Protocol. As we have stated previously and often, we do not consider the Protocol to apply in the absence of a Title V legal base. The Minister will also know that, should the Government succeed in adding a Title V legal base, we consider that the three months should run from the date upon which the new legal base was added, for the reasons stated in the EU Kosovo and EU-Ukraine agreements.[61] [62]

11.21 We look forward to hearing from the Minister when these matters have been resolved, and to him to ensure that there are at least two months between then and when the Council is due to consider these Council Decisions, so that there is sufficient time to consider the opt-in implications.

11.22 In the meantime, we shall retain the documents under scrutiny.

54   COM(06) 724 l of 4 December 2006. Back

55   GAERC conclusions of 5 March 2007. Back

56   Presidency Conclusions - Brussels, 21/22 June 2007, Doc 11177/07. Back

57   Presidency Progress Report on Strengthening the European Neighbourhood Policy, Doc 10874/07. Back

58   Conclusions on Strengthening the European Neighbourhood Policy, adopted by the Council (General Affairs and External Relations) on 18 June 2007, Doc 11016/07. Back

59   COM(2011) 303 final of 25 May 2011. Back

60   See headnote: (35362-5) -: chapter 5 of this Report. Back

61   See (34868-9) -: HC 83-xvii (2013-14), chapter 4 (16 October 2013). Back

62   See (35362-5) -: chapter 5 of this Report. Back

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Prepared 30 October 2013